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The good people of Fresno County find themselves twice cheated by a former investigator who was ordered to pay almost $24,000 in restitution for wrongfully receiving workers’ compensation benefits from the county.

As my dear readers are well aware, your humble blogger does not like to name names, but fraudsters are an exception and public shaming is as appropriate as possible. Hopefully, a Google search of fraudsters named on this blog will help future employers become aware of some of the “experience” their job applicants might have that has been left off the resume and application.

Not only did Swenning cheat Fresno County tax-payers by securing money to which he was not entitled, he also proved incompetent as a fraud by getting caught. Did the Fresno County District Attorney’s Office have criminals slip through its fingers because they proved better at concealing their fraud than Mr. Swenning?

Congratulations are owed to the Fresno County DA – one cannot ferret out the frauds in the county until one has done so with the frauds in one’s house.

So, dear readers, your humble blogger has a question for you – when an applicant undergoes a medical procedure meant to cure or relieve him (or her) of the effects of his admitted industrial injury, but fails to go through the treatment authorization procedures laid out in the Labor Code and Code of Regulations, is the employer/insurer liable for the temporary disability period resulting from said procedure?

That was the issue in the somewhat recent (there are but so many days in a week, after all, dear readers – one cannot get to all the cases and stories of note!) case of Michael Moser v. Valli Construction. Applicant underwent spinal surgery, and his treating physicians anticipated a permanent and stationary date one year after the surgery. However, applicant became convinced that the metal implant was causing an allergic reaction (as had been the case with two unrelated metal implants in his foot and leg as part of treatment for past injuries).

He complained of constant and extreme pain, and insisted on its removal.

Without seeking authorization from defendant for the removal surgery, applicant underwent the procedure less than a year from his original operation, and had the metal removed. He then claimed temporary disability benefits while he was recovering from the second surgery.

Naturally, defendant had a problem with this.

Denying liability for temporary disability after the second surgery, defendant rolled up its proverbial sleeves and took it to the street… before taking it to the WCAB, and, upon finding a workers’ compensation Judge less than persuaded by defendant’s position, to the commissioners on reconsideration.

Unfortunately, the WCAB ruled that temporary disability was due at least until the anticipated date of permanent and stationary status as per the initial surgery. But as for the rest, the defendant was still on the hook. Why?

Well, defendant correctly pointed out that Labor Code section 4062(b) specifically shields defendants from liability for TTD resulting from a procedure performed prior to the completion of the second opinion process. But applicant’s argument pointed instead to California Code of Regulations section 9788.01(L)(4), which specifically excluded from the definition of “spinal surgery” any procedure which is required because of bona fide emergency.

The WCAB held that, because the medical evidence supported applicant’s position that he was, in fact, facing a bona fide emergency situation (as defined by Labor Code section 4610(g)(2); “the employee’s condition is such that the employee faces an imminent and serious threat to his or her health…”) the shield of section 4062(b) does not apply.

So, the employer was on the hook for the temporary disability payments until applicant recovered from his unauthorized surgery.

Your humble blogger understands that emergency situations arise and the legendary swiftness of workers’ compensation procedures is not conductive to truly necessary treatment which may be required from time to time. But… here’s what your humble blogger doesn’t understand about this case:

the applicant was aware of the metal implants he was receiving in his spine prior to the first surgery, and was aware that he had reacted in exactly the same way to two prior metal implants, and that his symptoms resolved after those two prior metal implants had been removed;

He first began complaining of this allergic reaction almost two months after his surgery;

He was evaluated for the second surgery almost ten months after his first surgery, and underwent the surgery more than a week later.

Why was defendant kept in the dark about this? Applicant finally underwent the second procedure ten months after the first – ample time for the spinal surgery utilization review and second opinion process to be undertaken if not completed. What’s more, applicant was well aware of how he reacted to metal implants, but had not informed his treating physician of the fact.

Your humble blogger submits to you, dear readers, that applicant himself created the “emergency,” and that if he would have (1) told his treating physicians of his metal allergy; or (2) immediately began the removal surgery approval process upon feeling the same symptoms he had felt after his previous two metal implants, defendant would have rightfully avoided additional liability for temporary disability.

In all likelihood, there would have been a swift removal procedure and applicant would have become permanent and stationary on or before the date previously predicted as one year from his initial spine surgery.

Although the WCAB reached the correct conclusion in terms of legal liability, there should be some correction for self-created emergencies.

While Mr. Cortez was collecting disability payments, private insurance investigators observed him on six occasions performing his usually gardening duties, and referred the case to the District Attorney’s office, who then took the case the rest of the way and filed criminal charges. (Although the D.A.’s office deserves credit for its investigation and impending prosecution in this case, the insurer’s investigators are to be commended for providing the Department of Insurance with a packaged case ready for the slam-dunking.)

Your humble blogger has been known to rant and rave about what such fraud does to California, which can be boiled down to criminal waste – someone is getting free money without providing society with any sort of labor or product in return. Law enforcement dollars are wasted on investigation and prosecution, and private companies waste dollars on investigators while their policy holders must chip in extra to root such frauds out.

My dear readers may recall a three-part post on the presumptions afforded firefighters and police officers in questions of medical causation. Specifically, Labor Code section 3212 calls for heart trouble which manifests during employment to be presumed compensable. Similarly, Labor Code section 3212.1 applies to cancer. Sit back, dear readers, and hear the tale of how this presumption was defeated in a recent writ denied case (for the more curious readers, the panel case is that of David Pesko v. City of Westminster; please e-mail your humble blogger if you would care for a copy of the panel opinion.)

Officer Pesko of the Westminster Police Department filed an application claiming injury in the form of throat cancer. The diagnosis was made by applicant’s treating physician, and he eventually underwent surgery and returned to light duty. (Sources have reported that in response to this claim, Westminster has equipped all patrol cars with sirens and speakers, abandoning the prior procedure of having officers yell at the driver to pull over.)

The parties agreed to go to an AME to resolve all disputes, who found that the throat cancer “developed strictly as a consequence of non-work related HPV infection” which occurred prior to his employment with Westminster PD.

In denying applicant’s petition for reconsideration, the WCAB recognized that “[p]ursuant to Labor Code section 3212.1, a peace officer who is exposed to a known carcinogen and develops or manifests cancer while employed is entitled to the presumption that the cancer is industrially caused.”

However, citing City of Long Beach v. Workers’ Compensation Appeals Board (Garcia), the panel reasoned that the AME showed that “the odds that applicant’s cancer is industrial ‘are vanishingly small’,” which satisfied the Garcia standard that “an employer demonstrates the absence of a reasonable link if it shows no connection exists between the carcinogenic exposure, or that any such possible connection is so unlikely as to be absurd or illogical.”

However, one of the commissioners dissented, and would have granted reconsideration. The dissenting opinion stated that the only way to overcome the presumption found in Labor Code section 3212.1 was to show that there was no link between the applicant’s exposure to carcinogens and his cancer – it doesn’t matter which is the more likely cause of the cancer, the non-industrial exposure prior to employment or the industrial exposure during employment; all that matters is the fact that there was an exposure, and the presumption of 3212.1 should kick in.

The problem with expanding the application of the “presumption” is that you have cases such as these: a 99% certainty that the injury is caused by non-industrial infection, found by an Agreed Medical Evaluator, and one out of three commissioners would find the defendant-employer liable.

Several cities have had to cut their law enforcement and fire department budgets to accommodate potential liability, as can be seen in this latest police-chase footage from the frozen North of Eureka:

Happy Martin Luther King day, dear readers. As your humble blogger celebrates by catching up on the pile-o-files screaming for his attention, he hopes that you have a wonderful day, and return tomorrow to this wonderful world of comp with a three-day weekend to look back on and only a four-day week to face.

“[T]he Appeals Board will decline to exercise jurisdiction over a claim of cumulative industrial injury when there is a reasonable mandatory forum selection clause in the employment contract specifying that claims for workers’ compensation shall be filed in a forum other than California, and there is limited connection to California with regard to the employment and the claimed cumulative trauma injury. A party challenging the validity of a mandatory forum selection clause shall bear the burden of showing that the clause is unreasonable.”

The above language is lifted from the opinion in the case of Dennis McKinley v. Arizona Cardinals (En Banc, January 15, 2013). My readers will recall that their humble blogger has touched, a time or two, upon the issue of those souls lucky enough to visit California and call it work, only to return and call it litigation.

Here’s the background: Dennis McKinley played for the Arizona Cardinals in the National Football League. His contract of employment was signed in Arizona in 1999, and he played until 2003. During that time, the Arizona Cardinals had 80 games, 40 of which were in Arizona and 33 in states that were NOT California.

Applicant’s legal theory was that his five days at a training camp in La Jolla, California, and the seven games played in this once-great state should allow him to shove the Cardinals down the meat-grinder that is California’s workers’ compensation system.

Previously, my dear readers may recall that we explored the defense included in Labor Code section 3600.5(b), which allows employers to avoid California jurisdiction in certain cases. However, in the instant case, the WCAB rejected the argument that jurisdiction should not be exercised over this case because of section 3600.5(b). Affirming the workers’ compensation Judge’s reasoning that “defendant did not offer any evidence on any of the conditions that would allow it to escape jurisdiction under [section] 3600.5(b)”, the Cardinals seemed trapped.

So what persuaded the WCAB to open the cage and set the Cardinals free?

McKinley’s employment contract included a “forum selection clause” which listed as a specific agreement that any workers’ compensation claims were to be brought in Arizona and not in any other state.

However, during McKinley’s career, he played in a total of 17 states (including California and Arizona). So, by his theory, he would be able to bring his claim in any of those states. California was nothing special – the contacts with this state were minimal and consisted of 7 games and 5 days at a training camp.

To quote the learned commissioners, “that limited connection is insufficient for the WCAB to exercise jurisdiction over [applicant’s] claim for workers’ compensation in derogation of the Arizona forum he and the Cardinals reasonably identified in their employment contracts as the place where any claim for workers’ compensation would be filed.”

So what made the forum selection clause enforceable?

First off, the WCAB noted that the contract was not signed in California, but in Arizona. Second, the WCAB found that there was no fraud or overreaching in the signing of this contract. Finally, the contract appeared reasonable – applicant spent most of his time in Arizona, so why not have the workers’ compensation claim adjudicated there?

Certainly, this case will see more appeals, but let’s look at the recent trend:

Perhaps the courts are growing tired of professional athletes coming to California and dragging their reluctant employers with them. Or perhaps there are enough cases burdening the California Comp system without us Californians looking for more trouble to pile onto our litigious plates.

When the river of appeals has dried up on this case and we have some settled law on this issue, the question will be how broadly the language of the law can be applied to protect traveling employees from California’s ruinous jurisdiction.

Dearest readers – check your pending liens. Does the name American Sleep Medicine mean anything to you? If it does, you may want to put that checkbook away for now.

The Department of Justice has announced the settlement of an overbilling investigation into American Sleep Medicine’s practices, resulting in a (promised) payment of $15.3 million for improperly billing Medicare (and other Federal Healthcare programs). No sleep study will be necessary to document the sleep loss that American Sleep Medicine’s owners are probably experiencing.

My readers may recall a different instance of fraud, reported in years gone by. The main thrust of this matter is that American Sleep Medicine billed for sleep studies, primarily polysomnograhpic diagnostic sleep testing, but without having the initial sleep study be conducted by technicians licensed or certified.

Your humble blogger looked into the matter from the California side. A memo form the California Department of Public Health, dated October 18, 2010, points out that sleep study staff must be supervised by a registered nurse. In fact, the memo states “[b]ased on the applicable statutory and regulatory requirements, certified polysomnographic technologists must be supervised by physicians; however, in a GACH [general acute care hospital] registered nurses must also be present to provide ongoing patient assessments.”

A lien search on the EAMS public search tool reflects several liens filed by American Sleep Medicine, typically in the amount of $2,600.

So, dear readers, any luck fighting off these liens?

A very special thanks to Greg Jones of WorkCompCentral for leading your humble blogger on to this story.

Back in the old days, when banks were robbed, horses stolen, or funny looks issued from suddenly scarce visitors, a posse would be formed and frontier justice would be dealt to the guilty (or unlucky) target of the people’s wrath.

Posses are great and have a solid place in California’s history. The term originates from the Latin “posse comitatus,” which translates to the “force of the county” and allows law enforcement officers to conscript able-bodied citizens to assist them in keeping order or pursuing a fleeing criminal. In California, the common-law posse comitatus is recognized by Labor Code section 3366, which extends workers’ compensation benefits to any non-employee and non-contractor assisting a law enforcement officer.

Although your humble blogger does not typically like to report on unpublished cases, the matter of County of Riverside v. Workers’ Compensation Appeals Board(Taylor), is too fun to pass by.

In that case, applicant Sandie Taylor was a member of the Mounted Posse Program established by the Sheriff of Riverside County. These brave volunteers underwent training, sometimes provided by the county and sometimes at their own expense, and rode their horses in recruitment events, ceremonies, and occasionally to assist in crime scene preservation or search missions. Their role was primarily that of observation and reporting.

While training her horse to undergo simulated gunfire tests, Ms. Taylor was accidentally thrown from her mount and sustained injury (which EAMS lists as including her elbow, shoulder, and other body parts).

The Workers’ Compensation Judge found that she was not an employee of the County, but the Workers’ Compensation Appeals Board reversed, applying the aforementioned LC section 3366. In response to defendant’s petition for a writ of review, the Court of Appeal issued an unpublished opinion, reversing the Court of Appeal, and finding that Ms. Taylor was not an employee of the County.

No good deed goes unpunished, Ms. Taylor, even volunteering to assist the County Sheriff.

The distinction was in the practical meaning of section 3366 – the fact that the Sheriff has established a largely ceremonial auxiliary group and dubbed it a “posse” does not mean that it is a posse comitatus as defined by Labor Code section 3366. A posse comitatus is one that is meant to assist in the forceful apprehension of a criminal (as defined by the Court of Appeal: “[i]n that usage, of course, ‘posse,’ as in ‘round up the posse!’ is simply short for posse comitatus, as it typically reflects the sheriff or mashal’s call to local citizens to aid in the pursuit or capture of a bad guy.”See page 5, footnote 6).

Because, at the time of her injury, applicant was “training her horse to cope with stressful situations so that she might serve in the mounted posse in its various assignments”

The Court reasoned that applicant more closely resembled the type of person described in Labor Code section 3352(i), as a volunteer for a public agency.

WCDefenseCA wishes Ms. Taylor a speedy recovery, and hopes that this experience will not spoil her admirable inclinations towards public service.

Happy Friday, dear readers! Are you looking forward to the weekend? A certain (alleged) workers’ comp fraudster was too, last Friday, until the Tulare County District Attorney provided him with a set of matching bracelets to wear to his date at the County Sheriff’s jail in Porterville.

Your humble blogger, should he ever be arrested, would prefer to be arrested on Monday, and save the weekends for his non-incarceration time. Just an FYI to all my D.A. friends reading this blog…

Michael D. Maloney, employed by the County of Tulare, Resource Management Agency, was arrested last Friday by investigators of the District Attorney’s office on suspicion of filing a fraudulent workers’ compensation claim. To-date, the alleged loss is estimated to be in excess of $25,000.

As more details develop on this story, your humble blogger hopes to shed light on just how this fraud was detected, and what we can take away from this in the cases we handle to prevent private pockets from being picked (not just those of the County of Tulare).

Enjoy your weekend, dear readers. Hopefully, yours will be better than that of Mr. Maloney.

What’s the point in having an Agreed Medical Evaluator? Judicial economy is typically served when the parties agree on as much as possible in a given case, and the Board’s resources are reserved for actual disputes. So when the parties use an AME, there are no hearing on panel specialty, timeliness of strikes, etc.

Also, there should be less trials over substantial evidence in medical reports and treating physician’s reports vs. AME reports… because we agreed, right? For that reason, AMEs are compensated more than QMEs, and the incentive is there for an evaluator to develop a reputation as competent, fair, and impartial.

But what happens when one party isn’t happy with the AME’s report? Can it take its proverbial ball and go home? That seems to be what happened in the case of Mary Lou Smith v. Sacramento County. The County got the proverbial shaft at trial, on reconsideration, and the matter was denied review by the Court of Appeal.

Applicant claimed to have developed sinus symptoms because of mold in her work environment. The treating physician found that the water damage in applicant’s office caused mold and this caused applicant’s injury. Naturally, defendant disputed this finding and the parties retained an Agreed Medical Evaluator.

Did the parties go to Bozo the Clown? Did they retain their favorite cartoon character to determine medical issues in this case? Did they declare their shiniest quarter the AME and flip Dr. Quarter several times to answer all of their questions? No. They retained a physician with almost 40 years in practice, board certified in internal medicine and pulmonology, with a secondary practice area of Occupational Medicine.

Now, your humble blogger is not saying anything, one way or another, with respect to this AME’s qualifications. Your humble blogger is humbly silent on that point. The voices you hear shouting that this AME is a physician that should be deferred to on issues such as diagnosis and causation of injury are the parties themselves – by agreeing to retain this physician, both applicant and defendant screamed from the mountaintops “YES! YES! YES! WE WANT HIM!”

Well, that was until the reports came out, of course.

So, applicant took her ball and went home… to the Board where she argued that the treating physician’s report was the only substantial evidence on record. The WCJ agreed – he found that the AME’s opinions are not substantial evidence because the results are illogical or unreasonable. Instead, the WCJ relied on the opinions of the treating physician, which recognized that applicant’s mold exposure inside the work area was less than one-half the outdoor exposure levels, focused on the fact that there was a “higher than normal aspergillus exposure in the area around [applicant’s] workstation and [applicant] had aspergillus in her sinuses.”

So, the AME’s logic is that applicant spent 16/24 hours away from her work station, and those 16/24 hours had as much or higher mold concentration than her work station. Also, he relied on an industrial hygienist report which found that there was not an extensive area of water damage outside of the break room, and the mold concentration in the building was “not an environment that realistically would produce a fungal sinusitis.”

Additionally, the AME reasoned that applicant had other reasons to develop fungal sinusitis, including a long history of asthma.

In denying defendant’s petition for reconsideration, the split panel majority reasoned that it “found [the treating physician’s] opinion more persuasive than [the AME’s] opinion.” But that isn’t the standard, is it? The questions is whether the AME’s opinions are substantial evidence – and if they are, the AME’s opinions control even if the PTP’s opinions are persuasive or even more substantial evidence.

The dissenting opinion to the panel made this point very well – the AME had laid out his reasoning very clearly, in a neat and organized manner. There had been no allegations that the facts the AME relied upon were incorrect, only that the result was unacceptable – how could an employee with fungal sinusitis not recover?

When the degree that AME opinions are afforded weight and authority depends on their results, what incentive is there to use an AME?

This is, by no means, a widespread issue – AMEs are usually afforded considerable weight, but if this is the start of a trend then your humble blogger is concerned about the possible incentives in disputing more issues instead of seeking agreement on as much as possible.

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The content of this web log is for information purposes only and should not be construed as legal advice. No attorney-client relationship is formed by this site. If you would like to speak to a workers' compensation defense attorney, please contact Gregory Grinberg at 650-235-4008.